An
abandoned house sits behind Charles Waltz's home in
Apollo Beach, and a fence separates the two properties. When
Hillsborough County Deputy Sheriff Eric Johnson arrived at
the abandoned house for an investigation and walked into the
yard of the abandoned house, two of Waltz's dogs - a
Doberman and a thirty-pound “cattle dog” -
approached the fence and began barking at Johnson, who stood
thirty feet from the dogs. The cattle dog leaped the fence
and ran toward Johnson, and Johnson shot the dog twice. As
the wounded dog allegedly “tried to get back into [the
Waltzes' ] yard, ” Johnson shot the dog again. The
dog later died.

Charles
and his daughter, Toni, sued (Doc. 2) Johnson and the Sheriff
of Hillsborough County in the Circuit Court for Hillsborough
County, and the defendants removed (Doc. 1) the action. Count
one, the Section 1983 claim, alleges that Johnson seized the
dog in violation of the Fourth Amendment. Count two alleges
that Johnson intentionally inflicted emotional distress.
Counts three and four, which the Waltzes respectively title
“respondeat superior” and “indemnification,
” request a finding of the Sheriff's vicarious
liability for a prospective judgment in counts one and two.
Johnson moves (Doc. 4) to dismiss for failure to state a
claim. Also, Johnson argues that qualified immunity requires
dismissing with prejudice the Section 1983 claim. A month
after the motion, the Waltzes fail to respond.

DISCUSSION

1.
Fourth Amendment violation (count one)

The
Fourth Amendment protects against an officer's
unreasonable “seizure” of a pet dog. See,
e.g., Altman v. City of High Point, N.C. , 330
F.3d 194 (4th Cir. 2003) (holding that the killing of a pet
constitutes a “seizure” under the Fourth
Amendment). The reasonableness of a seizure “must be
judged from the perspective of a reasonable officer on the
scene, rather than with the vision of 20/20 hindsight.”
Graham v. Connor, 490 U.S. 386, 396 (1989).
Graham explains that an officer often must
“make split-second judgments - in circumstances that
are tense, uncertain, and rapidly evolving - about the amount
of force that is necessary in a particular situation.”
490 U.S. at 397.

Under
qualified immunity, a Section 1983 claim warrants dismissal
if the complaint fails to state a claim for the violation of
a constitutional or statutory right or if the right is not
“clearly established” at the time of the
incident. Pearson v. Callahan, 555 U.S. 223 (2009).
The law establishes a right clearly if the law at the time of
the incident permits a “reasonable official [to]
understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Determining whether the law “clearly establishes”
a right in Florida requires examining the decisions of the
Supreme Court, the Eleventh Circuit, and the Florida Supreme
Court. McClish v. Nugent, 483 F.3d 1231, 1237 (11th
Cir. 2007). Even if no binding decision finds a
constitutional violation in a similar circumstance, qualified
immunity is unavailable if a reasonable officer would find
the unlawfulness of the defendant's conduct apparent or
manifest. Anderson, 483 U.S. at 640; Moore v.
Pederson, 806 F.3d 1036, 1047 (11th Cir. 2015).

In this
instance, Officer Johnson heard a Doberman and a thirty-pound
“cattle dog” barking behind a nearby fence. When
the cattle dog leaped the fence and ran toward him, Johnson
shot the animal twice. Even after the first two shots, the
dog remained mobile. Faced with an unrestrained but
aggressive cattle dog, a reasonable officer in Johnson's
circumstance would act similarly. Nothing in the Fourth
Amendment requires that an officer submit passively to
mauling by an unrestrained and aggressive animal or that an
officer engage in physical combat with the animal but without
the aid of weapons. An officer can shoot and kill an
unrestrained and aggressive attacker of any species if that
attacker presents an apparently genuine and serious threat of
bodily harm or death. In sum, Johnson acted reasonably, and
no “clearly established” law of the Supreme
Court, of the Eleventh Circuit, or of the Florida Supreme
Court prohibits shooting an unrestrained and aggressive
animal that dangerously accosts an officer in the course of a
lawful investigation.

2.
Intentional infliction of emotional distress (count two)

Intentional
infliction of emotional distress requires showing that the
defendant acted intentionally or recklessly, that the
defendant's act was “extreme” or
“outrageous, ” and that the act caused the
plaintiff to suffer severe emotional distress. Metro.
Life Ins. Co. v. McCarson, 467 So.2d 277 (1985). As
explained above, Johnson's decision to shoot an
unrestrained and aggressive dog that leaped a fence and ran
toward Johnson appears neither “extreme” nor
“outrageous.”

Even if
the Waltzes state a claim for intentional infliction of
emotional distress, Section 768.28(9)(a), Florida Statutes,
immunizes Johnson from defending the claim. That section
provides sovereign immunity to an officer unless he acted
“in bad faith or with malicious purpose or exhibiting
wanton and willful disregard of human rights, safety, or
property.” In this circumstance, nothing about
Johnson's election to shoot an unrestrained and
aggressive dog demonstrates bad faith, malice, or a wanton
and willful disregard for the rights, safety, or property of
the Waltzes.

CONCLUSION

The
Waltzes fail to state a claim against Johnson for violating
the Fourth Amendment and for intentionally inflicting
emotional distress. Also, qualified and sovereign immunity
respectively preclude the claims under Section 1983 and under
Florida common law. The motion (Doc. 4) to dismiss is
GRANTED, and counts one and two are DISMISSED WITH PREJUDICE.
The clerk is directed to ...

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